BONNEY V COTTLE & ORS HC AK CIV 2010-404-427

BONNEY V COTTLE & ORS HC AK CIV 2010-404-427

Because the third and seventh defendants took no steps and did not plead limitation, the court exercised its power under r15.10 to enter default judgment; on the affidavits and expert evidence the court found the defendants negligent, awarded special damages of $24,502.44 and general damages of $2,000 to each of the first and second plaintiffs, awarded interest under s87 Judicature Act 1908 and costs on a category 2B basis.

Citation
openlaw-1b226f01_739a_4f08_934a_6690dd1bc39a.pdf
Parties
Plaintiffs: CALVEN DENNIS BONNEY, PATRICIAANN BONNEY, CST TRUSTEES LIMITED AND MURDOCH HALL TRUSTEE COMPANY LIMITED; First Defendant: VALERIE JOY COTTLE; Second Defendant: JOHN GILMOUR MCLINTOCK TRADING AS J. G. MCLINTOCK & ASSOCIATES; Third Defendant: ROBERT GERARDS MEDEMBLIK; Fourth Defendant: LORETTA MARY BOLER AND ROBERT NEIL BOLER; Fifth Defendant: AUCKLAND CITY COUNCIL; Sixth Defendant: TONY HERON; Seventh Defendant: JOE STANTON; Eighth Defendant: BRENT COTTLE; Ninth Defendants: JOHN BERNARD TUCKER AND HEATHER MAUREEN TUCKER; Tenth Defendants: ROGER WILLIAM CARTWRIGHT AND DAVID STEPHEN HUGHES; Eleventh Defendant: BUILDING CODE CONSULTANTS LIMITED; Twelfth Defendant: MURDOCH PRICE BARRISTERS & SOLICITORS
Court
High Court
Jurisdiction
New Zealand
Judgment Date
4 May 2012
Procedural Posture
Civil Building Defects/weathertightness; Negligence / Default Judgment Application Under High Court Rules R15.10; Assessment of Damages
Outcome
Default judgment entered for plaintiffs against third and seventh defendants
Legal Topics
Weathertightness, Designer and Inspector Negligence, Limitation Period (building Act S393), Default Judgment, Damages Assessment, Interest and Costs
Building Law Tort Negligence Limitation Law Civil Procedure Weathertightness Designer and Inspector Negligence Limitation Period (building Act S393) Default Judgment +2 more

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Parties

CALVEN DENNIS BONNEY, PATRICIAANN BONNEY, CST TRUSTEES LIMITED AND MURDOCH HALL TRUSTEE COMPANY LIMITED

Plaintiffs

VALERIE JOY COTTLE

First Defendant

JOHN GILMOUR MCLINTOCK TRADING AS J. G. MCLINTOCK & ASSOCIATES

Second Defendant

ROBERT GERARDS MEDEMBLIK

Third Defendant

LORETTA MARY BOLER AND ROBERT NEIL BOLER

Fourth Defendant

AUCKLAND CITY COUNCIL

Fifth Defendant

TONY HERON

Sixth Defendant

JOE STANTON

Seventh Defendant

BRENT COTTLE

Eighth Defendant

JOHN BERNARD TUCKER AND HEATHER MAUREEN TUCKER

Ninth Defendants

ROGER WILLIAM CARTWRIGHT AND DAVID STEPHEN HUGHES

Tenth Defendants

BUILDING CODE CONSULTANTS LIMITED

Eleventh Defendant

MURDOCH PRICE BARRISTERS & SOLICITORS

Twelfth Defendant

Procedural Posture

Civil Building Defects/weathertightness; Negligence / Default Judgment Application Under High Court Rules R15.10; Assessment of Damages

Legal Issues

  1. 1 Whether third (designer) and seventh (inspector) defendants were negligent causing weathertightness damage
  2. 2 Whether limitation under s393 Building Act 2004 (10 year long stop) barred the claims and whether court should take the time point when defendants did not plead it
  3. 3 Scope of damages properly attributable to the third and seventh defendants and appropriate award on default judgment under r15.10 High Court Rules

Ratio Decidendi

Because the third and seventh defendants took no steps and did not plead limitation, the court exercised its power under r15.10 to enter default judgment; on the affidavits and expert evidence the court found the defendants negligent, awarded special damages of $24,502.44 and general damages of $2,000 to each of the first and second plaintiffs, awarded interest under s87 Judicature Act 1908 and costs on a category 2B basis.

Court Disposition

Default judgment entered for plaintiffs against third and seventh defendants

Orders

  • Judgment for plaintiffs against the third and seventh defendants for special damages $24,502.44
  • Judgment for each of the first- and second-named plaintiffs against the third and seventh defendants for general damages $2,000 each